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The decision overturned a ruling issued in January by Judge Rosemary Collyer, shown in 2008, who held that the ACLU and the Yale Media Freedom and Information Access clinic had no standing to press for access to records of the secretive court. | Charles Dharapak/AP Photo

Divided surveillance court revives drive to release opinions

By JOSH GERSTEIN

11/09/2017 08:05 PM EST

Updated 11/09/2017 09:47 PM EST

2017-11-09T09:47-0500

Judges on a largely secret federal surveillance court divided sharply in a ruling released Thursday reviving an effort by transparency advocates to force greater disclosure of the court's opinions.

The Foreign Intelligence Surveillance Court split, 6-5, in the first opinions ever handed down by the court's full bench.

The majority opinion written by Judge James Boasberg found that the American Civil Liberties Union and a Yale Law School clinic had standing to challenge the government's refusal to release portions of the court's opinions.

"Figuring out whether a plaintiff has standing to bring a novel legal claim can feel a bit like trying to distinguish a black cat in a coal cellar," Boasberg wrote. "Whatever the merits of Movants' suit, we conclude that they have asserted a sufficient injury-in-fact to pursue it."

The decision overturned a ruling issued in January by FISC Judge Rosemary Collyer, who held that the ACLU and the Yale Media Freedom and Information Access clinic had no standing to press for access to records of the secretive court.

Collyer stood by her position as she penned the court's dissenting opinion, suggesting it was unwise to move forward with litigation aimed at forcing more transparency on a court whose work is by its very nature and purpose largely hidden from the public.

"FISC proceedings are classified and the Court operates under specific congressional direction that everything it does must respect and protect the secrecy of those classifications," Collyer wrote. "No member of the public would have any 'right' under the First Amendment to ask to observe a hearing in the FISC courtroom. Still less should we be inventing such a 'right' in the present circumstances."

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Collyer said the case gave her surveillance court colleagues, many of whom hail from outside Washington, "a rare and wonderful opportunity to wrestle together over some weighty legal principles and issues." However, she was unsparing in her criticism of the majority opinion, calling its reasoning "mistaken and circular."

The court did not split strictly along partisan lines, but all four of the Democratic-appointed judges voted to uphold the nonprofit group's standing to pursue access. Two of the court's Republican appointees agreed with that position, but the other five Republican appointees were in dissent.

Justice Department spokesman Wyn Hornbuckle offered no immediate indications of whether government lawyers will pursue an appeal. "We're reviewing the opinion," he said Thursday evening.

Despite the transparency advocates' victory in Thursday's ruling, it's far from clear that they will ever win access to the still-secret portions of the opinions at issue. The majority's ruling only dealt with the advocates' standing to pursue the issue, not with the question of whether they're entitled to more of the opinions or to force the government to offer more detail about whether they must remain under wraps.

The advocates also face another obstacle: The majority returned the case to Collyer for further action. While she must abide by the majority's ruling on standing, her opinion makes clear her view that the ACLU and the Yale clinic have no right to the still-secret information, so they are likely to find little legal traction there.